Wealth (n). Impunity.

39

I won’t dwell on the details of Tim Ireland et al’s current run-in with a toad-like Uzbek billionaire oligarch, as Obsolete’s coverage of the issues sums things up to a tee:

Alisher Usmanov and his shower of lackeying legal cunts, Schillings, have finally pulled off a very pyrrhic victory. Despite comprehensively failing to remove Craig Murray’s original blog post about Usmanov, which is still around if you know where to look, they’ve managed to spook Tim Ireland’s webhost [Fasthosts] so much that they’ve pulled the plug on Tim and Clive’s cluster of sites, also including Bob Piper, Boris Johnson and Craig Murray’s blogs.

What this has done is crystallise one or two ideas that I’ve been mulling over a quite some time as to how bloggers might be able to mount a fightback against the efforts of the rich and shameless to suppress any and all criticism or adverse publicity by sicking their high-priced ambulance chasers on anyone who dares to deviate from their client’s carefully sanitised script.

The problem that British bloggers face comes in two parts.

First, Britain has by far the most vicious and pernicious libel laws of any Western liberal democracy. You know that you are in trouble when you live in a country that has rapidly become the jurisdiction of choice for neurotic, litigious, American slebs looking to sue their own country’s supermarket tabloids.

Second, the laws of libel and defamation in the UK treat web hosting companies as as the publishers of any content hosted on their servers, including blogs, even if the hosting company has absolutely no idea what the site owner is publishing on their site, because of which UK based hosting companies are ultrasensitive to threats of legal action and tend to shoot first and ignore any questions later.

This is exactly what happened to Tim. Usmanov’s legal attack dogs have used his financial muscle to intimidate Fasthosts into pulling the plug not only on Craig Murray’s blog, which is where the material he objects to was posted but also every other blog hosted on the same account, including the personal website of one of Britain’s best-known politicians, Boris Johnson.

So those are the problems. The question is what, if anything, we can do about it, particularly in terms of ensuring that this kind of thing does not become standard practice in the UK.

In continuing his coverage of the story, Obsolete makes the eminently sensible suggestion that British bloggers, especially those with a penchant for the controversial, should look to host to their sites in the United States, where hosting companies tend to be much less skittish about legal threats and intimidation thanks to the protections afforded them by the US First Amendment which guarantees the right to free speech. Although this offers no protection to British bloggers when it comes to libel -we can still be sued in the British courts even if we host our blogs in the States – it does make it much more difficult for would-be litigants to get their way, merely by threats and intimidation. It’s good advice, and by no great coincidence, the precise reason why the Ministry of Truth is hosted on servers that are physically located in California.

Hosting blogs in United States is a useful workaround but one that is far from being the ideal solution. What would be better would be for Britain’s framework of libel and defamation laws to be brought out much more into line with those of United States of America – and a proper constitutional law guaranteeing freedom of speech would be even better still.

We need to change the law, it’s as simple as that. But the $64,000 question is how?

There is a simple change that could easily be made that would improve things almost immediately by freeing UK-based web hosts from the threat of litigation as nominal publishers of third-party content hosted on their server, one that could be put in place by means of a short Private Member’s Bill which would put in place legal provisions similar to those set out in Section 230 of the US Communications Decency Act. The principle this sets out is entirely straightforward:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In short, this removes web hosts from being held liable, as publishers, for content that they host but in which they have taken no active part in either its authorship or publication. This won’t stop the legal threats but it will place the decision as to whether to cut and run or stand and fight back into the hands of bloggers rather than having it arbitrarily taken away from them by their hosting company.

Tackling the issue of libel law, and other laws that operate to unduly limit free expression, is a more difficult proposition – after all, the present laws manifestly favour the rich and powerful, including Jabba the Arsenal Shareholder, who have a vested interest in maintaining the status quo.

What makes the UK’s libel laws so vicious is, in part, that it places the burden of proof entirely on the defendant. The law assumes that any statement that is alleged to be defamatory is deemed to be false unless the defendant can prove otherwise, operating under strict liability. Moreover, in the case of ‘public figures’ the question of whether a statement was made with ‘actual malice’ (knowing falsity or reckless disregard for the truth) is relevant only to the question of obtaining compensatory and, particularly, punitive damages.

By way of contrast, in the US, a public figure must show actual malice in order to win the case.

Under UK law, libel is also viral, in the sense that material is deemed to published at the point at which it is read, which is called ‘multiple publication’, and all instances of publication containing allegedly libellous material are actionable. This is why, and how, it is possible to sue in the British courts over material published on a website that is physically in the US, because it is the act of downloading a web page, and the location in which is downloaded, which UK law treats as the act of publication for the purposes of establishing jurisdiction…

…and this is all based on a precedent set in 1848.

In 1848 the Duke of Brunswick, then living in Paris, sent his manservant off to the British Museum to get a copy of the Weekly Dispatch published 17 years previously which he believed had defamed him. He also got a copy from the Dispatch’s London publisher. Despite a limitation rule of six years in those days, the court of Queen’s Bench decided that these receipts constituted a new publication of a libel and a cause for action. He was awarded £500, a huge sum at the time.

In the US, the ‘single publication’ rule is used, under which – in blogging terms – material is published only once, at the time its uploaded to the blog by pushing the ‘publish’ button, and it is only that act of publication that is actionable.

Were this implemented in UK law, then I could be sued over content posted here only in the jurisdiction in which articles on the blog are initially published, which would be California, and I would have all the benefits of mounting a defence under the much more favourable US libel laws.

Its in all our interests, as bloggers, to see the UK’s libel laws brought into line with those of the US, but do we affect such a change?

Well, in part, the campaign for fair treatment for Iraqi employees working for British forces shows us one way forward. We can write to and lobby our MPs for changes to both the position under which web hosts operate and for changes in the libel laws to put in place the single publication rule and raise the bar in cases involving public figures to the actual malice standard that applies in the US.

When I’ve got a little more time, I’ll draw up the necessary form letters and related information in addition to keeping an eye on the next ballot for Private Member’s Bill which will provide an opportunity to lobby directly for the exemption for web hosts.

There is something else we can do, however. Something a little more direct and, dare I say it, disruptive – although it is entirely legal, and this something rests on a little known common law principle called ‘Jury Nullification‘.

As some may know well, there is a basic division of ‘labour’ in jury trials in which the judge deals with points of law and its correct interpretation, giving directions to the jury accordingly, while the jury is left to concern itself only with ruling on the facts.

However, it also within the scope of a jury to disregard any directions it receives from a judge and return a ‘not guilty’ verdict in a criminal trial, or find for the defendant in a civil case, on the basis that it considered the law under which the case the brought to be, in colloquial terms, an ass. The last occasion on which this happened in a UK court was in the trial of Clive Ponting where, despite being directed that it had to convict as the Official Secrets Act did not permit a public interest defence, the jury chose to accept Ponting’s defence and found him not guilty.

Given a scenario in which a blogger find themselves called up for jury service and assigned to a libel case, especially a high profile case involving a sleb, and the possibilities for a little well intentioned mischief are endless.

Okay, so the chances of that actually happening have to be considered rather remote. Libel trials are not that common, as most cases are settled out of court, so the odds of hitting the perfect scenario are going to be slim, but then this is where a combination of the growth of interest in blogging and the fact that many of blog anonymously can be made to work in our favour.

Slim though the chances of hitting the jackpot and having a blogger sitting on the jury of a libel trial, there is still a chance of that happening, and because of our anonymity there is little or no prospect of the powers that be, or libel lawyers for that matter, being able to predict if and when that might happen or whether any of the twelve good men (and women) being sworn in on a particular case might be a blogger who’s primary intention is to give a bravura performance worthy of the film ’12 Angry Men’ and persuade their fellow jurors to indulge in a little bit of juror activism.

It’s a bit of simple psychological warfare – we make a collective commitment that should any of us find ourselves in the situation of sitting as a juror on a libel case, we make every effort to secure a judgement for defendant no matter what. Well, almost – if someone does end up on a case of Joe Public vs The Sun or the Daily Mail and its an obvious hatchet job, then by all means do the right thing and rack up the damages as much as humanly possible. We’re not in this to give comfort to the MSM, but rather to secure a fair system for dealing with libel that more adequately respects the importance of free speech. Between that commitment and the anonymity of many of us – and remember there are also the lurkers and commenters as welll who can get in on this, we have the perfect situation from which to start racking up the FUD, especially amongst the legal lackeys of the rich who cannot know for sure when they enter court whether today’s the day that the bullet’s in the chamber and there’s a blogger sat on the jury waiting to put their case prep down the shitter on a matter of principle.

We turn he business of suing for libel into a game of Russian Roulette and see what shakes loose.

I’ll have more thoughts on this in due course, but think about it and spread the word. It’s never to early for a bit of FUD.

Oh, just to say that the title of this piece is, of course, the definition of wealth provided by Ambrose Bierce in The Devil’s Dictionary.

“Were this implemented in UK law, then I could be sued over content posted here only in the jurisdiction in which articles on the blog are initially published, which would be California, and I would have all the benefits of mounting a defence under the much more favourable US libel laws.”

I’m going to b e honest, I think that is a little flaky. It’s arguably to say that the “act” of publishing is not occuring in the US but is actually occuring in the UK at the first point of the HTTP POST. I’m not saying you’re wrong, but as someone who’s been working in the provider industry for almost a decade, and has spoken with a number of top legal brain on industry matters, this argument is not considered quite so clear cut.

After all, the “publish” button is not on the remote host. It is a generated content on the local host. When you hit the button the button is local to the browser and it will send an HTTP post to the remote host. Like I say, I’m saying you’re wrong, per se, more that the basis of the argument is questionable.

So far as publication is concerned, what matters for the purposes of libel is the point at which material becomes available to the public, which is only after it arrives at the server, not the point at which the upload begins as there can be no libel unless material is actually visible to the public.

Not just UK law. Australian too. Dow Jones lost a libel case in Australia on that very point. Downloading took place in Oz, so that’s where publication was.
The implication of this is not just that UK bloggers are thus liable for UK libel laws, wherever their host is. But that all bloggers everywhere are subject to all libel laws in all 192 countries.

Goldsmith v. Pressdram Limited- after the infamous libel series of the 1970s between Jimmy Goldsmith [its always the billionaires, isn’t it?] and Private Eye- led to the precedent that anyone who distributes a libel is guilty of publishing that libel in law and can be sued for it. This allowed Goldsmith to sue newsagents for libel on condition that they agreed never to sell Private Eye again. Theoretically, he could have sued newspaper boys for libel- or someone who talked about the contents in a pub. Today, this case law can be used, for example, to sue for libel anyone who referred to Usmanov and this case’s allegations in their blog.

Secondly, Tim can think himself happy and lucky that Usmanov has not gone down the criminal libel route. This is the other part of libel- still extant- and which Goldsmith only withdrew from use against Private Eye on the advice of the independent directors of the Daily Express, which he was then trying to buy. Basically- and I’d Wiki or Google for this- you can go to prison for a considerable term for printing truths- proven truths- about someone unless you can demonstrate that a reasonable man would find it in the public interest to publish such information. Untruthfulness plays no part in this whatsoever.

Not arrested, per se, unless the law of criminal libel is used, but certainly sued in a UK court.

Trust me, much has been written on this in the US in relation to the possible effects of the UK’s libel laws, and especially those of Australia, which have been used in precisely that fashion.

The one saving grace that US citizens have, however, is that even someone sued over here and won, they would still need to apply to a US court to enforce the judgment so long as the defendent stays outside the UK’s jurisdiction, and US courts are notoriously unwilling to enforce judgments issued by foreign courts where they may impinge on the constitutional rights of US citizens.